1 Ch. 4: HR Legislation and Regulation Fairness Fairness Equal Employment Opportunity (EEO) Equal...

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Ch. 4: HR Legislation and Ch. 4: HR Legislation and RegulationRegulation

FairnessFairness Equal Employment Opportunity (EEO)Equal Employment Opportunity (EEO) The concept that all individuals The concept that all individuals

should have equal or equitable should have equal or equitable treatment in all employment-related treatment in all employment-related actions.actions.

Safety and healthSafety and health PrivacyPrivacy

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Ch. 4: HR Legislation and Ch. 4: HR Legislation and RegulationRegulation

DiscriminationDiscrimination Recognizing differences among items Recognizing differences among items

or people.or people. Protected ClassProtected Class

Groups identified for protection under Groups identified for protection under equal employment laws and regulation.equal employment laws and regulation.

• Race, ethnic origin, colorRace, ethnic origin, color • Sex/gender• Sex/gender • • AgeAge

• DisabilityDisability • Military experience• Military experience • Religion• Religion• Marital statusMarital status • Sexual orientation• Sexual orientation

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Illegal Employment Discrimination

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DISPARATE TREATMENTDISPARATE TREATMENT

Occurs when different standards are Occurs when different standards are used to judge different individuals, or used to judge different individuals, or the same standard is used, but it is the same standard is used, but it is not related to the individuals’ jobsnot related to the individuals’ jobs Protected class(es) affected differentlyProtected class(es) affected differently

OUTCOMEOUTCOME of the employer’s of the employer’s actions, actions, not intentnot intent, is considered , is considered by courts when deciding whether by courts when deciding whether illegal discrimination has occurred.illegal discrimination has occurred.

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DISPARATE IMPACTDISPARATE IMPACTSubstantial underrepresentation of Substantial underrepresentation of protected class member(s) resulting protected class member(s) resulting from employment decisions that work from employment decisions that work to their disadvantage.to their disadvantage. Griggs vs. Duke PowerGriggs vs. Duke Power (1971) decision: (1971) decision:

1.1. Lack of intent to discriminate is not a valid Lack of intent to discriminate is not a valid employer defenseemployer defense

2.2. Employer has Employer has burden of proofburden of proof to show to show that an employment requirement is a job-that an employment requirement is a job-related “related “business necessitybusiness necessity.”.”

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EEO Terms and Concepts

Business necessityBusiness necessity Job relatednessJob relatedness BFOQsBFOQs Burden of ProofBurden of Proof No retaliationNo retaliation

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Burden of ProofBurden of Proof McDonnell-Douglas v. GreenMcDonnell-Douglas v. Green

Court ruled that a Court ruled that a prima facieprima facie (preliminary) (preliminary) case of employment discrimination is shown by:case of employment discrimination is shown by:

1.1. Person is a member of a protected group.Person is a member of a protected group.

2.2. Person applied for and was qualified for a job but Person applied for and was qualified for a job but was rejected.was rejected.

3.3. Employer continued to seek other applicants after Employer continued to seek other applicants after the rejection occurred.the rejection occurred.

Once Once prima facieprima facie case has been made, case has been made, burden of proofburden of proof shifts to the employer. shifts to the employer.

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Equal OpportunityEqual Opportunity

Equal EmploymentEqual Employment Employment that is not affected by illegal Employment that is not affected by illegal

discriminationdiscrimination.. Blind to differences – Blind to differences – suggests thatsuggests that

Differences among people should be ignored Differences among people should be ignored and everyone should be treated equally.and everyone should be treated equally.

Affirmative ActionAffirmative Action Employers urged to actively seek employees Employers urged to actively seek employees

of protected races, age, gender, or national of protected races, age, gender, or national origins to make up for past discriminationorigins to make up for past discrimination..

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Major Federal EEO Laws and Regulations

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Sex/Gender DiscriminationSex/Gender Discrimination

Pay Equity & Comparable Pay Equity & Comparable WorthWorth Pay for jobs requiring comparable levels Pay for jobs requiring comparable levels

of KSAs should be paid similarly, even if of KSAs should be paid similarly, even if actual duties differ significantly.actual duties differ significantly.

Courts have consistently ruled against Courts have consistently ruled against claims.claims.

Equity TheoryEquity Theory

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Sex/Gender DiscriminationSex/Gender Discrimination

Sexual HarassmentSexual Harassment Unwanted sexual advances Unwanted sexual advances

Threat of adverse employment conditionsThreat of adverse employment conditionsCreating a hostile work environmentCreating a hostile work environment

Can occur betweenCan occur between Boss and a subordinateBoss and a subordinateCo-workersCo-workersNon-employee business contact and employeeNon-employee business contact and employeeOther org membersOther org members

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Americans with Disabilities Act (ADA)Americans with Disabilities Act (ADA)

Definition of DisabilityDefinition of Disability Physical or mental impairment that Physical or mental impairment that

substantially limits one or more life substantially limits one or more life activity, activity,

record of such impairment, record of such impairment, or being regarded as having such or being regarded as having such

an impairment.an impairment. Employers win 90%Employers win 90%

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ADA and Job RequirementsADA and Job Requirements

Essential Job Functions

Fundamental job duties of the

employment position that an individual with a disability holds or desires.

Undue Hardship

Significant difficulty or expense imposed on an employer in

making an accommodation for

individuals with disabilities.

Reasonable Accommodation

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Most Frequent ADA Disabilities Cited

Source: Based on data from U.S. Equal Employment Opportunity Commission, 1992–2005; see www.eeoc.gov for details.

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ADA Amendments Act of 2008ADA Amendments Act of 2008

Effective 1-1-09Effective 1-1-09 Restores original intent of ADA, Restores original intent of ADA,

overturning Supreme Court decisions overturning Supreme Court decisions that narrowed interpretationthat narrowed interpretation

Changes focus from Changes focus from “Is the “Is the employee truly disabled?”employee truly disabled?” to to “Has the employer met its “Has the employer met its obligation?”obligation?”

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Changes brought by ADA Changes brought by ADA Amendments Act of 2008Amendments Act of 2008

1.1. Broadens Definition of DisabilityBroadens Definition of Disability:: Regarded as having an actual or Regarded as having an actual or

perceived physical or mental perceived physical or mental impairmentimpairment—whether it limits or is —whether it limits or is perceivedperceived to limit major life activity to limit major life activity

Doesn’t apply to minor or transitory (< Doesn’t apply to minor or transitory (< 6 months) impairments6 months) impairments

Reasonable accommodationReasonable accommodation not not required for “Regarded”required for “Regarded”

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2.2. Substantial LimitationSubstantial Limitation on one on one major life activity is enoughmajor life activity is enough

Overrules court casesOverrules court cases

3.3. Major Life Activities Major Life Activities expandedexpanded List includes eating, sleeping, standing, List includes eating, sleeping, standing,

lifting, bending, reading, concentrating, lifting, bending, reading, concentrating, thinking, communicating, etc.thinking, communicating, etc.

Adds Adds Major Bodily FunctionsMajor Bodily Functions Digestion, respiration, circulation, etc.Digestion, respiration, circulation, etc.

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4.4. Reasonable Accommodations:Reasonable Accommodations: Not required for “Regarded as” Not required for “Regarded as”

Disability (see definition)Disability (see definition)

5.5. Reverse DiscriminationReverse Discrimination No claims allowed under ADAAANo claims allowed under ADAAA

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Employment Discrimination ActsEmployment Discrimination Acts

Age Discrimination in Employment (ADEA)Age Discrimination in Employment (ADEA) Prohibits employment discrimination against Prohibits employment discrimination against

individuals age 40 or older working for individuals age 40 or older working for employers having at least 20 workers. employers having at least 20 workers.

Unless age is a job qualification (Unless age is a job qualification (BFOQBFOQ).). Older Workers Benefit Protection Act Older Workers Benefit Protection Act

(OWBPA)(OWBPA) Amendment to ADEA protecting employees Amendment to ADEA protecting employees

from liability waivers for age discrimination in from liability waivers for age discrimination in exchange for severance packages.exchange for severance packages.

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Immigration Reform and Control Immigration Reform and Control Act (IRCA)Act (IRCA)

Prohibits employment discrimination Prohibits employment discrimination against persons legally permitted to against persons legally permitted to work in the USwork in the US

Requires employers to document (I-9 Requires employers to document (I-9 form) eligibility for employment. form) eligibility for employment.

Provides penalties for knowingly Provides penalties for knowingly employing illegal workers.employing illegal workers.

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Religion and MilitaryReligion and Military

Religious DiscriminationReligious Discrimination Illegal unless religion is a bona fide occupational Illegal unless religion is a bona fide occupational

qualification (BFOQ)qualification (BFOQ) Reasonable accommodation of beliefs is required.Reasonable accommodation of beliefs is required.

Military Status and USERRAMilitary Status and USERRA Vietnam-Era Veterans Readjustment Act and Vietnam-Era Veterans Readjustment Act and

Uniformed Services Employment and Uniformed Services Employment and Reemployment Act encourage employment of Reemployment Act encourage employment of veterans veterans

Require employers to provide leaves of absence Require employers to provide leaves of absence and reemployment rights for employees called to and reemployment rights for employees called to active duty.active duty.

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USERRA Provisions

Common Issues

• Leaves of absence

• Return to employment rights

• Prompt re-employment on return

• Protection from discharge/retaliation

• Health insurance continuation

• Continued seniority rights

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Sexual Orientation and AppearanceSexual Orientation and Appearance

Sexual Orientation and DiscriminationSexual Orientation and Discrimination Court and EEOC have ruled that sex Court and EEOC have ruled that sex

discrimination under CRA Title VII applies to discrimination under CRA Title VII applies to a person’s gender at birth.a person’s gender at birth.

Appearance and Weight DiscriminationAppearance and Weight Discrimination UniformUniform application of dress codes is application of dress codes is

permitted.permitted. Height and weight requirements must be Height and weight requirements must be

proven job-related.proven job-related.

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Seniority and Arrest RecordsSeniority and Arrest Records

Seniority and DiscriminationSeniority and Discrimination Courts have held that application of a valid Courts have held that application of a valid

seniority system does not violate the rights of seniority system does not violate the rights of protected-class individuals.protected-class individuals.

Conviction and Arrest RecordsConviction and Arrest Records Employers may not use arrest records in Employers may not use arrest records in

employment decisions.employment decisions. Conviction records may be used in determining Conviction records may be used in determining

employability IF the offense is job-related.employability IF the offense is job-related.

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Guidelines for Legal Pre-Employment Inquiries

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Uniform Guidelines on Employee Uniform Guidelines on Employee Selection Procedures (1978)Selection Procedures (1978)

Used by EEOC, Department of Used by EEOC, Department of Labor’s OFCCP, and Department of Labor’s OFCCP, and Department of JusticeJustice How an employer should deal with hiring, How an employer should deal with hiring,

retention, promotion, transfer, demotion, retention, promotion, transfer, demotion, dismissal, and referral. dismissal, and referral.

If sued, employers have two routes to prove If sued, employers have two routes to prove they are not illegally discriminating against they are not illegally discriminating against employees: employees:

no disparate impact or job-related validity.no disparate impact or job-related validity.

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Uniform Guidelines on Employee Uniform Guidelines on Employee Selection ProceduresSelection Procedures

““No Disparate Impact” No Disparate Impact” ApproachApproach

4/5ths Rule4/5ths Rule Selection rate for a protected-class Selection rate for a protected-class

must be at least 80% (4/5ths) of the must be at least 80% (4/5ths) of the selection rate for the majority group or selection rate for the majority group or at least 80% of the group’s at least 80% of the group’s representation in the relevant labor representation in the relevant labor marketmarket

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Internal Disparate Impact Example

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Internal Metrics for Disparate ImpactInternal Metrics for Disparate Impact

Selection of candidates for

interviews from those recruited

Pass rates for various

selection tests

Performance appraisal ratings as they affect

pay increases

Identificationof individuals

for layoffs

Promotions, demotions,

and terminations

Check for internal

disparateimpact

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Internal Metrics for Disparate ImpactInternal Metrics for Disparate Impact

ASSESSASSESS Selection of candidates for interviews--Selection of candidates for interviews--

from those recruitedfrom those recruited Pass rates for selection “tests”Pass rates for selection “tests” Process for selecting layoff targetsProcess for selecting layoff targets Promotion, demotion, discipline and Promotion, demotion, discipline and

termination processestermination processes Perf Appraisal process and pay raisesPerf Appraisal process and pay raises

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Racial Distribution in Valleyville (Example of Relevant Labor Market)

(External)

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Job-Related Validation Job-Related Validation ApproachApproach

Employment “test”Employment “test” Employment-related decision procedure must Employment-related decision procedure must

have both job-related validity and reliability.have both job-related validity and reliability.

ValidityValidity The extent to which a test actually measures The extent to which a test actually measures

what it says it measures.what it says it measures.

ReliabilityReliability The consistency with which a test measures The consistency with which a test measures

an item.an item.

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Validity and Equal EmploymentValidity and Equal Employment

Selection Procedures and ValiditySelection Procedures and Validity Employers must demonstrate that tests of Employers must demonstrate that tests of

knowledge, skills, and abilities (KSAs) are valid and knowledge, skills, and abilities (KSAs) are valid and job-related.job-related.

Content ValidityContent Validity Logical, non-statistical method (e.g., job analysis) Logical, non-statistical method (e.g., job analysis)

to identify the KSAs and other characteristics to identify the KSAs and other characteristics necessary to perform the job.necessary to perform the job.

Criterion-Related ValidityCriterion-Related Validity Validity measured using a test as the predictor of Validity measured using a test as the predictor of

how well an individual would perform on the job.how well an individual would perform on the job.

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EEO Enforcement AgenciesEEO Enforcement Agencies EEO CommissionEEO Commission

Enforcement authority for federal employment laws.Enforcement authority for federal employment laws. Its policy statements are not “law,” but “persuasive Its policy statements are not “law,” but “persuasive

authority” in most cases.authority” in most cases.

Office of Federal Contract Compliance (OFFCP)Office of Federal Contract Compliance (OFFCP) Ensures that federal contractors have Ensures that federal contractors have

nondiscriminatory practicesnondiscriminatory practices and take and take affirmative affirmative actionaction to overcome the effects of past discrimination. to overcome the effects of past discrimination.

State and Local AgenciesState and Local Agencies May provide greater remedies, require different actions, May provide greater remedies, require different actions,

or prohibit discrimination in more areas.or prohibit discrimination in more areas.

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EEO ComplianceEEO Compliance

Records RetentionRecords Retention All employment records must be All employment records must be

maintainedmaintained AApplication forms and documents concerning pplication forms and documents concerning

hiring, promotion, demotion, transfer, layoff, hiring, promotion, demotion, transfer, layoff, terminationtermination

Rates of pay or other terms of compensationRates of pay or other terms of compensation Selection for training and apprenticeshipSelection for training and apprenticeship

Documents should be maintained minimum Documents should be maintained minimum of three years.of three years.

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EEOC Reporting FormsEEOC Reporting Forms

EEOC-1 (Annual Reporting Form) EEOC-1 (Annual Reporting Form) required forrequired for:: Employers with 100 or more employees, Employers with 100 or more employees,

except state and local governmentsexcept state and local governments Subsidiaries of companies if the total number Subsidiaries of companies if the total number

of combined employees equals 100 or moreof combined employees equals 100 or more Federal contractors with at least 50 employees Federal contractors with at least 50 employees

and contracts of $50,000 or moreand contracts of $50,000 or more Financial institutions with at least 50 Financial institutions with at least 50

employees, holding government funds or employees, holding government funds or issuing savingissuing saving

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ReceiveEEO Complaint

Determine EEOC Jurisdiction and Categorize Complaint

Serve Charge Notification on Employer

Investigate Complaint

Attempt to Mediate Complaint

Issue Notice of Relief, Right to Sue, or Sue Employer

Individual Files Suitin Federal Court

EEOC Files Suitin Federal Court

Stages in the EEOC’s Response to an EEO Stages in the EEOC’s Response to an EEO ComplaintComplaint

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Stages in the

Employer’s

Response to an EEO Complaint

1 Ch. 4: HR Legislation and Regulation Fairness Fairness Equal Employment Opportunity (EEO) Equal...

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